A word from Bill Otis

Yesterday John wrote about the legality of the NSA eavesdropping program in here. The case quoted by John discussed the 1980 Truong case. Former federal prosecutor Bill Otis (and friend of Paul Mirengoff) worked on the Truong case and writes:

As you may have seen if you read the list of counsel in the Truong case, I was one of the government’s lawyers. Although our months-long warrantless wiretap was conducted before FISA was passed, the case was decided afterwards. In a footnote, the Court, through Winter, J. (a liberal Democrat) plainly implies that the wiretap, which it unanimously held passed muster under Fourth Amendment standards, would do so as well under FISA’s.

In my view, this conclusion is correct. FISA cannot sensibly be read to disable the President from acting to protect the country from what might be imminent threat in time of what any sensate person must regard as war. Indeed, the argument for the President’s power in the present circumstances is considerably stronger than it was when my colleagues and I wrote the Truong brief. As in Truong, there had been no declaration of war per se, and, even more important, such war as there was had basically ended. (The whole deal with Truong, if I remember correctly, was that he was the conduit for a State Department traitor named Humphrey, who was sending to the North Vietnamese documents disclosing our government’s “bottom line” position for pulling out).

There has been no per se declaration of war against al Qaeda either, but there is at least as much of a war going on now as there was in the late 1970’s in Vietnam. And the present war is far more dangerous: our cities are the battlefields; the weapons probably available to the enemy are far more gruesome; their delivery is far easier to bring about and conceal; and the speed with which the enemy can contact its cohorts in this country and act on its plans is far greater now than it was then. Moreover, the war against terror is scarcely winding down — it is, to the contrary, becoming more far-flung and more dangerous.

And there is this as well (which the Truong decision does not note): Even in ordinary criminal cases, where the Supreme Court has held that a warrant is presumptively required by the Fourth Amendment, it has also long recognized an exception for what are known as “exigent circumstances.” In other words, when the government is facing what it reasonably views as a now-or-never chance to catch the bad guys, it is not required to obtain a warrant.

This being the case for your run-of-the-mill drug deal, it must surely be the case where the cost of failure is so much higher — indeed higher than any crime the country has ever seen. To view it differently is to prefer brain-dead legalism to survival.

FISA was passed in the aftermath of some rancid Nixonian abuses of the intelligence gathering capacities of the United States. The present surveillance has been and (presumably) is being conducted in what is truly a different universe. As usual, the liberals are stuck in 1969, fighting yesterday’s battles with yesterday’s ideas. Sometimes this is merely quaint. If they get away with it this time, it stands a greater chance of being fatal.

Bill Otis
(former Assistant US Attorney for the Eastern District of Virginia)